New Jersey v. Delaware

NEW JERSEY v. DELAWARE ON EXCEPTIONS TO REPORT OF SPECIAL MASTER 134, No. Orig. Argued November March 2007 Decided H. Bartow Farr III for argued cause With plaintiff. Milgram, Anne him on the brief were General Attorney Conklin, Rachel J. Horowitz L. and Barbara New Jersey, Burke, Gerard Deputy General, Attorneys Assistant Attor- Andersen, R. Renella, John E. William ney General, Amy Kelly, C. Donlon, Jablonski, Dean Eileen R Dep- uty General. Attorneys

David C.Frederick the cause for defendant. With argued Joseph III, R. Biden him on the brief were Attorney General Maloney, Angstreich, P. Kevin Scott H. Scott Delaware, Attaway, Priya Aiyar, Seitz, K. R. Jr., Collins Matthew J. Boyer, F. and Max B. Walton.* Ginsburg delivered the of the Court. opinion

Justice The States of seek this Court’s resolution of a their respective regula- dispute concerning within over a of the Delaware River tory portion Castle, town of New a circle twelve miles centered on the BP America Inc. *Stuart Raphael A. and Sona Rewari filed a brief et al. as amici curiae. the two States, In an earlier contest between

Delaware. upheld to “the river and the this the title of Delaware Court “up [the] subaqueous low water soil” within the circle Jersey easterly or side.” New v. mark on New (1934)(New Jersey Delaware Delaware, II)1 361, 291 U. S. v. boundary determination, 1905, Prior to that 1934 (1905Compact or the two States had entered into an accord Congress Compact), The which ratified over which accommodated both States’ concerns matters criminal service of civil and States had crossed swords: rights fishery process the twelve- on vessels within agree Although parties to reach mile zone. were unable boundary the 1905 time, ment on the interstate at that Com pact jurisdictional provisions important to the contained two dispute: current may, Each on its own side

“Art. VII. State every riparian jurisdiction of river, continue to exercise convey- grants, leases, and nature, kind and and to make under the laws ances lands respective States. Nothing shall affect the

“Art. VIII. herein contained rights, jurisdiction of either State limits, territorial or ownership of, in, River, or over the Delaware subaqueous except expressly herein thereof, soil as 24, set Act of 34 Stat. 860. forth.” Jan. controversy sparked Dela- here resolve was The we lique- grant permission for construction of ware’s refusal to (LNG) unloading gas terminal that would extend fied natural territory into New feet from shore 2,000 some belong adjudged Delaware. Delaware II plant, storage be other structures would tanks, LNG boundary annexed to the Court’s map showing 1 A line is interstate (1935). II, Six of Decree. v. 295 U. S. at the low- boundary partially all or Jersey’s municipalities have one circle. Delaware River within the twelve-mile water mark of the Jersey. Relying maintained onshore in New on Article VII Compact, Jersey urged of the 1905 that New it had exclusive jurisdiction projects appurtenant over all to its in- shores, cluding extending past wharves the low-water mark on New Jersey’s territory. side into Delaware Delaware asserted regulatory authority, VII, undiminished Article over support, structures located within in borders; its Delaware invoked, alia, inter Article VIII the 1905 Jersey Special our in decision New II. v. Delaware The appointed superintend proceedings Master we filed report recommending a determination that Delaware has regulate proposed construction, concur- rently Jersey, project with New to the extent beyond Jersey’s reached New border and extended into Dela- ware’s domain. accept princi-

We in Master’s recommendation pal part. Compact, Article VII of the 1905 hold, we did not Jersey riparian secure to New exclusive over all improvements commencing parties’ on its The own shores.2 regulate conduct, since the time Delaware has endeavored to development, supports coastal the conclusion to which other point: Jersey relevant factors New Delaware have over- lapping authority regulate riparian op- structures and extraordinary extending erations of character outshore of territory New domain into which Delaware is sovereign.

I concerning Disputes Jersey between and Delaware New (or River) boundary along separating the Delaware River beginning persisted the two have “almost from the States Jersey at 376. II, S., 291 U. statehood.” sovereignty, history competing claims States’ juris Jersey exclusive agree All lacks Members of the Court (Scalia, J., dissenting); Post, at 633 diction over structures. dissenting part). post, (Stevens, J., concurring part at 626 II, in New v. Delaware need rehearsed length brief, In title a series be detailed here. tracing through from the Duke of York deeds with a originating grant dominion, Delaware asserted within Penn, to William lands circle, twelve-mile over the River and subaqueous Id., to the mark on the New side. low-water up up 374. sovereign ownership claimed Id., at the middle channel. 363-364. navigable action New The instant is the third original proceeding Dela- has Delaware the involving commenced Jersey against ac- The first River between the two States. ware boundary 1877) (New (filed Delaware, 1, tion, Orig. New v. No. Jersey the States’ I), disagree- v. Delaware was propelled by Jersey Master 3 ments over See Report Special fishing rights. New many case “slumbered for years.” That (Report).4 the II, v. 291 U. at 377. S., Eventually, par- Delaware Jersey in ties which both States approved a negotiated Compact, Act of 24,1907, in Jan. 1905, ratified 1907. See Congress 394, ch. 34 to the comparison parties’ Stat. 858. Modest the the bound- aim, initial left location of interstate an then withdrew Jersey unsettled 6New ary question.5 3 re point The a river to which the water “low-water mark” of is “the 2004). (8th Dictionary ed. stage.” cedes at its Black’s Law 1623 lowest case, Master, filings are Report Special public in this The of the and all http://www.piereeatwood.com/custompagedisplay.asp?Show=2. available ratifi approved Compact, prior Congress’ the the but After States suspension cation, parties joint for of Court application the submitted a Jersey v. proceedings pending by Legislature. action National I, orally 1, Orig., O. T. of reasons submitted Delaware No. Statement suspension proceed joint application for the of Counsel both sides App. in 1 of Delaware ings (reproduced until the of the Court further order (hereinafter App.)). Summary Judgment Del. on Cross-Motions for compact... submission, represented counsel “[t]he In that Delaware’s modus disputed boundary, but truce or . . . not a of the was settlement purpose” “main Ibid. further stated that the vivendi.” Counsel fishing in joint regulation of “the business Compact was to authorize Bay.” Ibid. the Delaware River and

complaint preju- and this Court dismissed case without Jersey (1907). dice. New v. I, 205 U. S. 550 original Jersey second action, New II, v. Delaware by dispute ownership oyster fueled of an bed River below the twelve-mile circle. See 14. In re- sponse Jersey’s complaint, to New conclusively the Court boundary settled the Confirming between the States. report, Master’s the Court held that, within the twelve-mile circle, Delaware owns the River and the sub- aqueous up soil Jersey to the low-water mark on the New side. 291 Jersey gained U. atS., 385.6 But New the dis- puted oyster bed: adjudged South of circle, the Court boundary ship “to be the middle of the main channel in Bay.” Delaware River Ibid. See also New (1935)(Decree) Delaware II, 295 (perpetually U. S. enjoining disputing boundary). States from further upholding

In Delaware’s title to the area within the rejected twelve-mile argument circle, pressed the Court an Compact: By agreeing based on the 1905 Compact, urged, Delaware had abandoned any ownership beyond claim of the middle of the River. The Jersey’s argument Court “wholly found New without force.” compact 291 U. at S., 377. “The of 1905,” de- Court “provides enjoyment riparian rights, clared, for the of for jurisdiction respect proc- concurrent of civil and criminal fishery. Beyond ess, and for concurrent of that it does go.” Id., at 377-378. The Court next recited in full the Compact: “Nothing text of Article VIII herein con- rights, tained shall affect the limits, territorial or of either of, State in, River, or over the Delaware or the ownership subaqueous except of the thereof, soil as herein

6The suggests, post, 630, long original dissent at that the dormant first “appeared action going badly” strength to he for Delaware. The of Dela ware’s claim sovereign ownership to within the twelve- riverbed circle, however, mile comprehensively in New v. Dela described II, S., ware 291 U. at 364-378. 606 (internal quotation marks

expressly omitted). Id., at set forth.” II planned controversy construc out of the arose The current foreign-source vaporize import, store, and tion of facilities operated project Crown proposed be would LNG; subsidiary Petro wholly British Landing, owned LLC, (BP). App. on Cross- Report 19; 6 leum See Summary (herein Judgment 3804-3807 for Motions Decision). App.) (Request Zone Status Coastal after Del. gasification Landing” project include a would The “Crown in New storage onshore plant, structures tanks, and other extending some Jersey, pier related structures Report into Delaware. shore feet from New 2,000 up capacities Supertankers App. 19-20; Del. (more larger percent than than 40 meters 200,000 cubic pier. gas) carrying at the any ship would berth natural then system including, inter multipart transfer Id., at 3810.7 A — utility trough, and cryogenic piping, a containment alia, unloading 6,000-square-foot on the installed lines—would be (at transport suffi along pier platform the LNG state) liquid keep from ciently temperatures in a it cold storage onshore; ships tanks 158,000-cubic-meter to three gasification resulting vapor byproducts the onshore from 6 Del. 19-20; the tankers. returned to would be Affidavit). “[djuring (Cherry Even App. id.,7 3804; (when ship operation is un no holding mode of terminal along through piping loading),” circulate LNG would Construction pier “keep id., at 3804. line cold.” 6 arrive anticipated, would supertankers, it LNG Two three (Affidavit of App. 7 Del. unloading each week. terminal and Environmental Resources Dept, of Natural Cherry, Delaware Philip Affidavit). (hereinafter Cherry Planning) Control, Policy and Director of id., 4307-4308; areas, at densely populated pass transit, ships would In 3,000 ahead feet vessels other restrict moving safety zone would id., 4308. supertanker, of a 1,500 on all sides behind, feet the Crown Landing project would 1.24 mil- require dredging lion cubic yards soil, subaqueous affecting approximately 29 acres of the riverbed within Delaware’s Re- territory. 19-20.8 port

In September 2004, BP from sought permission Delaware’s Department Natural Resources and Environmental Con (DNREC) trol to construct the Crown Landing unloading id., terminal. See at 20.9 DNREC refused permission some months later terminal was ground barred by Delaware’s Coastal Zone (DCZA), Act Del. Code seq. Tit. 7, 7001 et Ann., § (2001),10as a “offshore prohibited ” . . . bulk product transfer as well as a facility] prohibited “[hjeavy us[e],” § 7003; industry 20. Report Reactions to DNREC’s decision over on boiled both sides. threatened to withdraw state funds pension from Delaware banks, and Delaware considered authorizing the National Guard protect border from encroachment. points The dissent projects involving dredging. to other extensive Post, examples presented, however, large-scale pub involved works, lic privately operated owned and facilities. 9Three seeking permission, months after Delaware’s BP commenced permitting process Jersey, by filing Development in New a Waterfront Application with Jersey’s Department of Environmental Protection. Report 20. 10The DCZA designed location, type “to control the extent and development industrial safeguard coastal . . . Delaware’s areas and [to] use primarily th[e] [of areas] those Del. Code for recreation and tourism.” (2001). §7001 Ann., Tit. appeal, On BP’s Delaware’s Coastal Zone Control Board Industrial Landing project affirmed DNREC’s was a determination that Crown appeal product facility prohibited by bulk BP transfer the DCZA. did not decision, rendering it a The dis final determination. 20-21. suspects permit may designed sent been that Delaware’s denial have away instead, siting plant, lure BP from Jersey, on Delaware’s Post, however, “[h]eavy law, proscribes “own shore.” at 645. Delaware industry us[e],” 7, § Ann., any “[t]he Del. Code Tit. area within 7002(a). Nothing § what sovereign, coastal zone” over which Delaware is that Delaware suggestion ever in the record us warrants before duplieitously. acted

608 Jersey legislator Report looked into re- 21. One New

See battleship commissioning museum-piece S. S. New Jer- U. repel might an sey, to be needed in the event that the vessel by ibid. invasion Delaware. See armed seeking Jersey 2005, action in commenced the instant New Compact estab- Article of the 1905 a declaration that VII regulate “to the construction lishes its exclusive Jersey improvements appurtenant shore of to the New free of Circle, Twelve-Mile the Delaware River within the Supple- Reopen regulation by to and for Delaware.” Motion granted Report leave to 22, 29. We 35; mental Decree see (2005). op- complaint. Delaware 546 1028 file bill of U. S. Jersey’s reading posed maintained Article and VII, New Jersey give Compact exclusive not New the 1905 did “approve projects that encroach on Delaware any say by submerged Brief for Delaware.” lands without Reopen Jersey’s Opposition New Motion Report Supplemental see 21; and for Decree by Ralph Special appointed I. Court, Master (2006), discovery superintended Lancaster, Jr., U. S. pre- carefully nearly pages 6,500 of materials and considered parties support of for sum- sented cross-motions mary ultimately judgment. Report determined 27. He Jersey by jurisdiction” preserved “riparian to New that the Compact and that Article “is not exclusive” VII of regulate overlapping jurisdiction . . . Delaware “has improvements mark on New outshore of the low water Jersey filed ex- Id., at 32. New side of the River.” ceptions to which we now turn.12 Special Master’s determinations exception no to the New takes challenging estopped from judicially that Delaware was 86-92, has not that Delaware VII, Report interpretation of Article id., See acquiescence, at 92-99. jurisdiction through prescription and lost Supporting Special Master Exceptions by New (hereinafter Jersey Exceptions). Brief n. 5

III At the principal outset, we summarize our decision reasons for it. In accord with the Master, we hold grant that Article VII of the 1905 does not Jersey jurisdiction riparian improvements exclusive over all extending outshore of the low-water First, mark. the novel “riparian jurisdiction,” parties term employed which the in Compact, properly limiting is read aas modifier and not synonymous jurisdiction.” as with “exclusive an Second, compact Jersey between New and New York casts in- light Jersey-Delaware formative on the later New accord. Virginia Maryland, Third, our decision in v. 540 U. 56S. (2003), provides support Jersey’s scant for New claim. We Maryland-Virginia boundary there held that a settlement gave Virginia “sovereign authority, regulation by free from Maryland, improvements appurtenant [Virginia’s] to build shore and [Potomac] to withdraw water from the River.” agreement Id., at Jersey’s 75. Delaware’s 1905 to New exer- “riparian jurisdiction,” cise of boundary made when the disputed, plausibly equivalent still cannot be read as an rec- ognition authority. sovereign Finally, of New Dela- regulating authority supported by ware’s claim to is New (until Jersey’s acceptance present controversy) of Dela- ware’s over water and land within its domain preserve quality prevent of deterioration the State’s coastal areas.

A Jersey hinges New its case on Article VII the 1905Com- pact, conferring complete which it reads as on State “each. regulatory authority operation over the construction riparian improvements improve- on its even if the shores, past Exceptions ments extend the low-water mark.” Jersey Supporting New Master and (hereinafter Jersey Jersey Exceptions). Brief 16 New New Jersey recognizes, Delaware’s II, confirmed New Delaware subaqueous sovereign ownership soil within River and Jersey emphasizes, the But, the twelve-mile circle. “subject expressly to the made determination Court that Compact acknowl- S., 291 U. of 1905.” police edges “unquestionably exercise its can power Ex- of the low-water mark.” New outshore ceptions however, that Delaware contends, 16. New au- interfere with the cannot so a manner that would do thority riparian rights VII of the 1905 that Article Jersey. Compact preserves for Ibid. particu- meaning and,

Because controversy, key of this VII, Article resolution lar, Significantly, Article issue. we focus our attention on that may, “[e]ach provides side of the own VII State jurisdiction” or “exclusive river, continue to exercise” not every “jurisdiction” “riparian jurisdiction of but unmodified, argues 34 860. New kind and nature.” Stat. encompass broadly “riparian jurisdiction” read should be police-power jurisdiction out on over activities carried full Jersey Exceptions 36-37. If structures. New improvements Jersey enjoys police power ex- New full necessarily tending reasons, then shore, from authority. Report 54. Delaware cannot encroach on that See “ Special ‘riparian’ lim agree with Master We the Report Interpreting iting interstate an modifier.” addressing statute,” compact, “[j]ust [we] a federal as if were (1998), it would York, 767, 523 S. v. New U. compact in with its appropriate term accord construe a be meaning, States, United Morissette v. see common-law (1952). jurisdiction,” “riparian how The term 246, 263 U. S. it one now. legal nor is art term ever, was Report Jo- (Expert Professor App. 4279, 4281 See 7 Del. (Nov. 2006)). seph L. Sax stated, As the Master “riparian jurisdiction” appears to be a verbal formulation by [1905 Compact] specifically “devised drafters for Arti- cle VII.” 54.13 Compact,

Elsewhere in the one more finds the familiar (in “jurisdiction” introductory paragraphs terms and, VIII) (in notably, jurisdiction” most in Article or “exclusive IV).14 “riparian jurisdiction” Article To attribute “jurisdiction” meaning equate same as unmodified, or novel juris- term distinct formulation “exclusive deny operative diction,” would effect to each word Compact, contrary principles to basic of construction. See (1955). United States v. Menasche, 348 U. 528, S. 538-539 regard, In this Article VIII bears reiteration: “Nothing herein contained shall affect territorial rights, jurisdiction limits, or of, in, either State ownership over the Delaware or the River, the sub- aqueous except expressly thereof, soil as herein set forth.” 34 Stat. 860.

Presumably recognition drafted in of the still-unresolved boundary dispute, supra, see at 603-606, Article VIII re- quires express an statement in the in order to “af- fect the territorial. . . of either State . . . over reading the Delaware River.” resist We uncommon “riparian jurisdiction,” aggrandized term even when appears The term in no compact. other interstate codi (West 2001), § fication of Compact, the 1905 in N. J. Stat. Ann. 52:28-41 term, cludes the but our attention been other state statute has called to no that does so. 14 paragraph The last of shall have Article reads: “Each State and IV arrest, exercise exclusive try, punish within said river to and its own legislation for the related to inhabitants violation of concurrent added). id., fishery provided (emphasis herein for.” 860 See also 34 Stat. (Articles II, at 859 recognizing jurisdiction” I and the “exclusive of each in regard process). State to service of criminal 612

phrase an every to ex- nature,” as tantamount “of kind and press . . “territorial . cession Delaware of entire jurisdiction . . the River.” . over

2 Endeavoring import term “ri of the novel to fathom the recognized parian jurisdiction,” Special ri that a the Master enjoys right parian ordinarily to a wharf the build landowner permit loading navigable enough to to access waters far unloading ships. Report 1 47-49, 58-59. Accord of § Rights p. 62, Farnham, of and Water H. Law Waters (1904) (“The to his con riparian also have owner is entitled known as This is what is tact the water remain intact. right right to wharves erect access, of and includes stream.”); navigable portion id., § 111, to reach the (“A margin navigable p. on wharf is a structure brought alongside for the sake of which vessels are water, unloaded.”). being conveniently But the or loaded riparian right recognized to a owner Master also that the regulation. Report subject 58; see wharf out is to state § (rights supra, p. owner “are Farnham, may always rights, public and the state subordinate to the Shively regulate public”); their in interest of exercise (“[A] (1894) Bowlby, riparian proprietor ... 152 U. S. navigable right part of the stream has the to the of access pier projecting a front of his wharf construct land, regula subject general into such rules stream..., protection may prescribe legislature for tions as the omitted)). (internal public quotation ... .” marks recog- Special Master’s took no issue with the may place public restric- interest, States, nition that in the response riparian proprietor’s In its activities. tions on a readily ac- request admissions, Delaware’s particular wishing person knowledged conduct a a grant, obtaining riparian activity wharf, addition “applicable comply other have to with all would

613 (New App. laws, and local laws.” 6 4147, Del. 4156 Responses Request ¶ Delaware’s First 22 Admissions 2006)). (Sept. (Second) See also Restatement of Torts § (“[A] (1977) pp. may 856, Comment e, 246-247 state exercise police power by controlling the initiation and conduct of riparian water.”). nonriparian uses of But New itself, sees empow- to the exclusion of Delaware, as the State regulate, public, ered to for the benefit of the riparian rights. landowners’ exercise of ordinary In the grants riparian rights case, the State that regulatory authority is also the State that has over the exer rights. Cummings cise of Chicago, those But cf. 188U. S. (1903)(federal regulation wharfing 410, 431 out in the Cal government umet regulatory River did not divest local project govern based on location of within that territory). regard, negotiators ment’s In this of the 1905 Compact long boundary an faced unusual situation: As as the they issue remained unsettled, could know which State sovereign beyond within the twelve-mile circle New Jer sey’s They likely “[i]n shore. knew, however, that a case of wharfing ‘[t]he upon out .. . of a owner navigable country governed by stream in this are the law of the State in which Wiel, the stream is situated.’” S. (3d 1911) Rights p. Water in the § 898, Western States ed. (quoting People’s Weems Steamboat Baltimore v. Co. (1909)). Co., Steamboat U. S. With the issue of sovereignty reserved the 1905 drafters for an day, Special other conclusion that Article VII’s Master’s “riparian jurisdiction” reference not mean “exclusive did jurisdiction” gainsay. is difficult to Special pertinently that, Master observed as New Jer- sey given up gov- Compact, all read the 1905 Delaware had receiving erning authority disputed while over the area “implau- nothing Jersey’s position He return. found New stated, sible.” Master “Delaware,” willingly jurisdiction over matters “would not have ceded all adamantly] place [Delaware taking it contended on land that outright.” exclusively at 64.15 Id., owned just Jersey shown that, as asserts that Delaware did New Jersey proceedings by representations during in New made Jersey Exceptions Delaware’s 44. v. Delaware II. New Special “Ar- reply in that case stated: Master brief before merely recognition obviously Compact of ticle VII of Jersey rights riparian and cession of New owners juris- Jersey by Delaware of the State of to the State New Jersey regulate rights.” App. diction to those argu- Summary Judgment Further, at oral 123a. Motion for fray, Special Dela- in that earlier ment before the Master Compact in the 1905 that, view, ware’s his counsel said right Jersey control the all the to “ceded to the State of New extending [wharves from Delaware River erection into the say Jersey’s shore] Id., erect them.” to who shall at 126a-l. Special in the instant case found New

The Master position representations Delaware as do we. The dubious, Special Jersey II, the made in the of New v. Delaware course [the “fully Mas- consistent with observed, Master here were Compact].” [of interpretation ter’s] of Article the 1905 VII right preserve “the 89. New did indeed Post, in return.” “plenty The that received dissent insists Delaware “plenty.” But, truth, gave neither State Compact at the 1905 630. equal fishing access to Each State accommodated to the other assure 604, agreed supra, at n. 5. Delaware rights the River. See a truce disputed boundary, [as] but [as] “not a settlement proceed deciding In whether modus vivendi.” App. or 1 Del. 190. the suit Attorney General advised litigation, with the Delaware’s (Letter id., 1069, expense.” very “would entail considerable 1903)). (Jan. noted, how He Gov. Hunn from Herbert Ward to John “greatly had ever, process of Delaware’s Answer preparing justice of her upon the counsel... strengthened the and reliance of belief II con Jersey Id., in claim.” at 1076. decision supra, n. See firmed Delaware’s conviction. riparian

exercise its improvements own ap- purtenant critically, to its shore.” Ibid. But, Delaware no- “suggested where that New would have the exclusive regulate aspects riparian improvements, all even if on Delaware’s land.” Ibid. argument

Delaware, in before the Master, was equally uncompromising. boundary As a result of the 1934 urged, determination, Delaware “the entire River is on Dela- ware’s ‘own consequently side,’ ha[d] and New no ‘side’ of any the River on which to exercise riparian jurisdiction.” Id., at 36. Article VII of the 1905 Compact, according “temporary” to Delaware, was a meas- “entirely... contingent ure, on the ultimate resolution of the boundary.” reading, Id., Special at 39. That the Master altogether demonstrated, was Id., fallacious. at 36-40. Seeking to boundary harmonize Article with VII de- Special termination, the Master reached these conclusions. Compact gave First, the Jersey New no grant by lands owned Id., Delaware. at Second, 45-46. Ar- preservation ticle VII’s “riparian jurisdic- to each State of tion” Jersey may means that New riparian rights control the ordinarily usually enjoyed by and landowners on New Jer- sey’s example, Jersey may shore. For New define “how far riparian quantities owner can wharf out, the of water that owner can draw from the River, and the like.” Id., regulatory 57-58. Nevertheless, au- thority qualified boundary is once line at low water passed. Jersey grant Id., at 58. Just as New cannot belonging Jersey land Delaware, so New cannot author- go beyond ordinary ize activities that the exercise of and riparian rights contrary regulation usual in the face Delaware.

B compacts, presumed Interstate like are to be “the treaties, subject they of careful into, consideration before are entered mean their competent express are drawn by persons embody pur in which to words choose ing apt Thompson, Rocca of the poses high contracting parties.” (1912). 223 U. Master Special S. Accordingly, in the 1905 Com of language informative a comparison found between compact contained an pact language That compact 65. and New York. See Report New Jersey the Hud along common boundary the two States’ established Simi 4 Stat. 708. 28, 1834, son Act of ch. River. June set and Delaware lar between boundary II, the 1834 v. accord in 1934 in tled at “the low boundary York Jersey-New located the New on the Hud side [of or New westerly water-mark supra, Third, 710; Art. cf. son Stat. River].” to New Jersey however, gave 1834 agreement, expressly right of property exclusive thé under in and to land “the York, and of New bay water west of the middle lying which the Hudson river of that west of the middle part and “the Jersey” island and New lies between Manhattan docks, wharves, and over the exclusive improvements, shore the said and to be made made added). Stat. 710 Third, 1, 2, 4 (emphasis state...” Art. ¶¶ authority],” exclusive [conferring “Comparable language absent observed, “is noticeably Master found this dis- 66. The Master Report [1905] Compact.” id., 68, provisions at for “[s]everal parity “conspicuous,” lan- similar compacts strikingly the two interstate [contain] id., id., (Table Similar 66; Comparing at J App. see guage,” 1834 York of Compact Provisions in the New Jersey-New 1905). that of Given Compact New Jersey-Delaware been adopted to have the 1905 appear provisions New 1834 accord Jersey’s almost from New verbatim ibid., ignorance claim hardly could York, see New to New grant been drafted Article VII could have (not jurisdiction”) merely “riparian “exclusive jurisdiction”

617 improvements extending over wharves and other from its navigable shore into waters, id., River at 67.16

C Jersey urged Special New before the Master, and in its exceptions report, Virginia Maryland, to his v. 540 dispositive U. S. of this case.17 Both cases involved compact, boundary an interstate which left the between contending unresolved, States and a later set- determination tling boundary. original And both actions were referred Ralph Special to per- I. Lancaster, Jr., as Master. We find Special suasive the Master’s recommen- reconciliation his Report dations in the two actions. See n. 64-65, 118. Virginia Maryland compact v. a 1785 involved and an 1877 Agreeing Special arbitration award. Master, with the we permitted Virginia held that the arbitration award con- extending struct a water intake structure into the Potomac though Virginia’s placed boundary River, even the award the low-water mark on own its side the Potomac. 540 See “Superficially,” Special S.,U. at 75. “that said, Master holding appear support Jersey’s argument would New Jersey’s here, e., i. that construction of off wharves subject regulation by shore should not be Delaware.” Report explained, 64, n. But, 118. Master Virginia Maryland unique result lan- turned on “the guage compact and arbitration award in that involved Report case.” 64, n. 118. subject The significant litigation years 1834 accord was the in the

leading up Report and surrounding adoption Compact. of the 1905 67. Notably, New York’s highest court concluded Article Third of agreement interstate meant what it said: had “exclusive” shore; extending beyond wharves therefore from New York lacked See to declare those wharves be nuisances. J., (1870); New York v. R. Central Co. N. Y. N. dissent, post, 638-640, essentially repeats argument. Maryland compact key provision between of the 1785

The right [of only Virginia, “the observed, addressed we improvements State] each to build wharves citizens of ultimately to be regardless determined of which State Concerning sovereign S., 540 U. at 69. over the River.” award, not the States, the 1877arbitration pro- key compact, id., at 75. was definitive. See right Virginia, “qua recognized award vision beyond sovereign,” mark,” a low-water use the River “to Maryland’s regulatory subject right au- made “nowhere thority.” Id., at 72. right, Virginia’s

Confirming “sovereign character” of Maryland proposed the arbitrators that had noted, we boundary around “all line be drawn between the States extending improvements or which now and other wharves authority by Virginia may from the extended, hereafter be beyond [Potomac] Virginia low mark.” water shore into the omitted). (internal Although quotation marks Id., 72, n. Maryland proposed in the arbi- was not used the formulation plainly their inten- manifested award, tration the arbitrators “Virginia’s accomplish safeguard au- tion to the same end: to thority improvements outshore of to construct by Maryland.” Report regulation low water mark without Maryland, Virginia 73, n. 7. S., v. 540 U. 118; n. see Compact, By case, in the neither the 1905 contrast, instant settling II, nor New decision v. regula- give dispute, purported boundary “all (as riparian oversight)” merely tory oversight opposed jurisdic- “exclusive to endow New supra, Report at 610-615. n. 65, 118;see tion Delaware.” D parties’ prior finally, conduct, course of to the turn,We weight. placed See considerable Master which the U. States, 479 S. United 68-84; cf. O’Connor (1986) (“The parties course of conduct of an to international agreement, parties any like course of conduct of to con- meaning.”). tract, is evidence of its wharfing Until the 1960’s, out from the New shore territory controversy into Delaware not a matter of be- Jersey began tween the two States. From when New 1851, issuing grants activity, through only for such 1969, con- boundary. Report structions straddled the interstate continuing At the time of the 1905 into the Jersey, grants 1950’s, Delaware, unlike New issued no subaqueous regulated ripar- leases for its lands. Delaware improvements solely ian under its law, common which limited developments only they public to the extent nui- constituted Id., sances. at 69.

In regulating 1961,Delaware enacted its first statute sub- merged legislation gov- lands, and in 1966,it enacted broader erning subaqueous leases of Id., state-owned lands. at 70. grandfathered piers prior The State and wharves built to regulations implementing the effective date of the the 1966 required, Id., statute. at 70-71. Permits were however, grandfathered for modifications to the structures and new Id., structures. at 71.18 prevent

Then, 1971, Delaware enacted the DCZA to significant danger pollution “a to the coastal zone.” Del. §7001. prohibits Ann., Code 7, Tit. within DCZA “[h]eavy industry any coastal zone “off- uses kind” gas, liquid product shore or solid bulk transfer facilities.” §7003. rejected prohibited In 1972, Delaware as a bulk facility Company’srequest transfer El Eastern build Paso unloading facility extending an LNG from New into 18 1986, Act, In 65 Del. adopted Subaqueous Delaware Lands its current (2001), Ann., 7, authorizes Laws eh. Del. eh. which Code Tit. sub- regulate any potentially polluting DNREC use Delaware’s made See lands. aqueous grant property lands interests those and to or lease id., 7206(a). § (Letter App. Di- Keifer, from David Delaware. 5 Del. Barry Planning Hunt- Office, rector of Delaware State (Feb. 1972)). Shortly singer, Company El Paso Eastern denying application, notified New El before Paso’s (NJDEP), Jersey’s Department of Environmental Protection permit objection which no to Delaware’s refusal raised similarly DCZA terminal.19 Delaware relied LNG deny permits Landing unload- for construction of Crown ing facility Report 20. at issue in this case. Congress Zone 1972, enacted the federal Coastal

Also in § seq., Management 1451 16 U. et Act, 1280, 86 Stat. S. C. manage required their coastal which States to submit programs Secretary for review ment to of Commerce programs approved approval. In return, States management. funding See would receive federal for coastal program, ap §§ management 1454-1455. Delaware’s coastal proved by Secretary specifically LNG in addressed 1979, “ [is] reported suitable that site Delaware facilities and ‘no facility.’” any import-export Re for the location LNG port App. (Dept. (quoting Commerce, 72 4 Na Del. 2591 (NO A), Atmospheric tional A Delaware Oceanic and Admin. Management Program Im Final Environmental Coastal (Mar. 1980))). year, pact New 1980, 57 The next Statement program. Jersey approval management gained coastal representation Special telling, we, as Master found do Secretary: Jersey made in its New submission Management Jersey and Delaware Coastal “The New Jersey any project agencies ... have concluded beyond extending water must obtain coastal mean low Jersey permits Delaware, both states. New from any proposed devel- therefore, will coordinate reviews 19 Keifer, (Letter of Delaware Director App. 3481 from David 5 Del. (Feb. Commissioner, Sullivan, NJDEP Office, Richard Planning State (Letter Sullivan, NJDEP, to Mr. Keifer 17, 1972)); id., from Mr. (Mar. 1972)).

opment span boundary that would the interstate en- development sure that no is constructed unless it would be management pro- consistent with both state coastal grams.” Report (NOAA, (quoting App. 4 Del. Management Program N. J. Coastal and Final Environ- Impact 1980)); (Aug. emphasis mental Statement added). representation, Special

See also 72-73. That fundamentally po- Master “is observed, inconsistent with the by Jersey only sition advanced New here, e., i. Jer- sey right regulate projects.” has the Id., such at 73. reported, just

As the Master three ex- structures tending from New into were built between permits 1969and 2006. Delaware’s DNREC issued for each Id., projects them. at 74-76. One of those was under- sought taken itself. The State, pier refurbish a stone at New Fort Mott State Park. development Id., 75-76. New issued waterfront permit project, permit approved for the but that structures only to approval the low-water mark. Delaware’s sought point. and obtained for structures outshore of that during pendency Jersey applied Even of action, this New permit covering portion to Delaware for renewal of the project extending of the Fort Mott into Ibid.20 Delaware. 20 Jersey striking New thing asserts “the most con [course about this of duct] any Jersey evidence the lack of . New reference .. officials Compact itself, the [1905] much less to the of VII.” New terms Article Jersey however, Exceptions citizens,” “All presumptively “are Parker, charged 115, 130 Atkins knowledge of the law.” U. S. (1985). §§52:28-34 Compact The 1905 is codified at N. J. Stat. Ann. 52:28-45. Jersey’s find unconvincing We New contention that its officials ignorant were of the all more State’s own statutes. The assertion is implausible given Jersey’s regulatory au recognition New Delaware’s thority a Jersey’s management plan, despite coastal New New county 82; planning objection acknowledgment. Report board’s to that (NOAA, App. Management Program Del. and Final N. J. Coastal 1980)). Impact (Aug. Environmental Statement 499

IV ownership upheld II Delaware’s v. Delaware cir- subaqueous soil within the twelve-mile of the River ordain that this Court’s The 1905 did not cle. boundary be an exercise of the would academic settlement reading significance. Tending against practical with slim authority, give Article VIII exclusive that would supra, Compact, emphasized, as see earlier “Nothing territorial herein contained shall affect the states: rights either in or over of, limits, State subaqueous ownership soil River, the Delaware or the expressly except Nowhere as herein set forth.” thereof, any “expressly lack of forth” Delaware’s does Article VII set authority territory governing own within the State’s over Cf. 43-46. borders. correctly that Delaware’s determined Master development policy regarding did coastal

once “hands off” signal assert could or would that the State never never subaque- using any regulatory authority its over structures Delaware Id., at In the decades since ous land. 69-70. prevent manage submerged began lands to waters and danger significant pollution zone,” “a to the coastal Del. § consistent has Ann., 7, 7001, Code Tit. the State followed Jersey’s Largely cooperation, Delaware course: with New extending activity proposed be- has checked structures yond in order to Delaware’s shore into domain [Delaware’s] “protect .. coastal natural . environment Ibid. areas.” that the 1905

Given may Jersey, not im- Compact preserves for New right riparian pede ordinary and usual exercises Jersey’s The Crown out shore. owners to wharf from New ordinary beyond Landing project, goes the well however, supra, classification Delaware’s at 606-607. usual. See industry “[h]eavy unloading proposed as terminal a LNG product facilit[y],” use” a and “bulk transfer Del. Ann., Code §§ hardly Tit. 7001, 7003, been, has not and could chal- be, lenged scope as inaccurate.21 Consistent with the its re- police power regulate tained certain uses, it was authority prohibit within Delaware’s construction facility Special within its domain.22 As recommended deny authority permission Master, we confirm Delaware’s Landing for the Crown terminal, overrule New ex- ceptions, enter, with modifications consistent with this opinion, proposed by Special the decree Master.

It is so ordered. part took no in the consideration or deci- Breyer Justice sion of this case.

DECREE having original jurisdiction The Court exercised over this controversy sovereign having two between States; issues Special appointed by been referred to the Court; Master having argument the Court received briefs and oral heard Jersey’s exceptions to the Mas- responses ter having thereto; Delaware’s Court Opinion, swpra, page. issued at 601-622 and this Hereby Adjudged, It is Ordered, Declared, and Decreed as follows: (a) Jersey may, grant The State of New its laws, under ordinary governing

and thereafter exercise agree dissent, post, We ration- at that Delaware could not ally categorize cargoes “heavy industry unloading as a use” a terminal hand, why, of tofu if sprouts. and bean On the other we cannot fathom extending casino, pier Delaware could on a block a or even restaurant territory, post, 633-634, reject permit into its for the LNG it could described, supra, terminal at 606-607. Jersey’s loss, 644-645, the deploring post, In dissent overlooks project. BP’s alternative sites in that could accommodate LNG Affidavit). App. (Cherry 7 Del. rights riparian construction, maintenance, the usual for and appur- riparian improvements and and use wharves other the the River within to the eastern shore of Delaware tenant extending low-water outshore the twelve-mile circle and and mark; further

(b) subject may, laws The under its and State of Delaware riparian rights in Jersey’s authority as stated over to New governing authority preceding paragraph, the exercise same maintenance, use of those construction, and the improvements appurtenant to the eastern other wharves and circle within the twelve-mile of the Delaware River shore extending mark, to the extent outshore the low-water and they ordinary usual uses. exceed and (c) permit proposed refusing of the In construction Landing unloading acted terminal, Delaware LNG Crown governing authority prohibit scope unrea- of its within and soil within twelve-mile sonable uses of river circle. Except provided, the motions for sum- as hereinbefore

2. mary judgment and Dela- of both the of New States prayers with relief dismissed ware are denied and their prejudice. compensa- party equally in the

3. The States shall share Special the costs assistants, his in tion of Master and litigation by Master. of this incurred further retains to entertain such Court proceedings, as it such writs orders, enter such and issue give may necessary time or desirable from time to deem proper effect this Decree or effectuate force and parties. Stevens, dissenting concurring part Justice part. reasoning in agree the Court’s I with

While most agree with opinion, announces, the rule it I do my view, In construction of its decree. all of terms riparian improve- and maintenance of wharves other territory ments that extend into over which sov- may ereign only by be authorized the to extent that such activities are not inconsistent with Delaware’s ex- police power. join 1(c), ercise of its paragraphs I therefore 2, 3, 4 separately of the Court’s decree, and write to explain my Jersey’s authority regulate that in view, New to beyond the low-water mark on its shore is subordinate to the paramount authority sovereign of the owner the river, of Delaware.

I abutting At common law, owners of land bodies of water enjoyed rights by adjacency certain their virtue of to that water. 1 Rights See H. Farnham, Law of Waters and Water (1904) § (“The p. riparian 62, 279 owner is ... entitled to have his contact with the water remain intact. is what This right known the right as of access, and includes the erect stream”). navigable portion wharves to reach the of the Yet “[wjhile rights by those rights were no means unlimited; the riparian destroyed of they the owner cannot be . . . are al- ways public rights, may reg- subordinate to the and the state public.” ulate their exercise in the the Id., interest of §63, (Second) at 284. See also Restatement of Torts §856, (1977) (“[A] may police power e Comment state exercise by controlling riparian the initiation of and conduct and non- water”).1 riparian uses of Comm’rs, (1873) See also Weber v. Board Harbor 18 Wall. 64-65 of

(“[A] riparian proprietor, stream, by navigable whose land is bounded a has the of right navigable part access to the of the in front of stream his land, stream, pier and to construct a or into for projecting wharf the his subject general regula use, others, own the to such rules use of legislature prescribe protection tions may public” as the for (“[The Milwaukee, (1871) Yates (emphasis added)); Wall. v. along rights riparian owner of a lot river] is . . . entitled subject proprietor navigable . by whose land is stream . . bounded general legislature may proper such regulations rules and as the see impose” (emphasis added)). riparian rights clear that it is

From these authorities regulation subject ordinarily some landowners are purposes question, of this only then, relevant State. ordinary “[i]n the notes, As the Court is which State. case, riparian grants is also State case, State authority those regulatory the exercise over that has relationship history be- rights,” of the But the ante, at 613. jointly river bounded vis-a-vis their two tween these States light ordinary. the 1905Com- In this case out takes Jersey Delaware, 291 pact, previous in New decision our agree (1934), I conduct, course of and the States’ U. S. 361 twelve- that within conclusion sensible Court’s improve- the two States’ circle, mile my judgment, overlapping. how- In extent ments is to some merely authority to overlapping extend not does ever, that operations of ex- regulation “riparian and structures beyond on traordinary mark New the low-water character” riparian and Jersey’s structures all ante, but to shore, operations extending into Delaware’s from out may only therefore, that New hold, domain. I would authority governing grant, over, thereafter exercise rights wharves and use of construction, maintenance, beyond to improvements mark riparian the low-water other rights grant exercise of those that the the extent police power of Delaware. State inconsistent with the

II (2003), forth Maryland, I set Virginia 56,80 540U. S. In v. enjoyed by riparian rights landowners my view that the subject along Virginia were of the Potomac River shore Maryland. I there regulation by river, of the the owner riparian are—like explained “th[e] landowners’ paramount subject riparian rights at common all law— river, sovereign authority that owns regulatory opinion). have (dissenting I would [Maryland],” at 82 id., Maryland’s pre- power therefore, held, that it was within facility vent the construction of the water intake that Fairfax County, Virginia, putting wished to build. Afortiori, then — today to one side the distinctions the Court draws between possesses cases, ante, two at 617-618—Delaware the au- thority, under its laws, to restrict the construction of the proposed liquefied gas facility natural that would extend sovereign territory. hundreds of feet into its concurrency But inherent in the notion of are limits to authority sovereign of even the that owns the river. In Vir- ginia Maryland, supra, I noted that the case did not re- quire precise Court “determine the extent or charac- Maryland’s regulatory jurisdiction,” ter of issue because the presented merely may Maryland impose any “whether Virginia limits on property happens . . . landowners whose (dissenting opinion). abut the Id., Potomac.” 82at Simi- larly, definitively in this case we need not settle the extent may to which there exist limitations on Delaware’s exercise improvements over its river and thereon; for argument even Delaware’s counsel conceded at Dela- impose ware could not a total ban on the construction extending Jersey’s wharves out from shores. Tr. of Arg. Similarly, permit- Oral 49, Delaware should not be differently extending improvements ted to treat commencing outshore from New land and those police-power Delaware’s own soil, absent some reasonable purpose Apart for that differential from those treatment. subject applicable constraints, clear however—and to federal my possesses primary law2—in view it is that the Delaware authority riparian extending improvements into territory. Comment e (“The (Second) (1977) § 856, See Torts Restatement of diversion, may prohibit, regulate limit and the obstruction

United States capacity navigable of ... if navigable use waters those acts affect waters”). navigable III agree my differing I do Despite herein, set forth views may prohibit construction Delaware the conclusion that with join complaint, spawned facility and therefore this that finding. portion decree so of the Court’s Alito joins, with whom Justice Scalia, Justice dissenting. opinion to respect, difficult all I find Court’s

With due (Com- Jersey-Delaware of 1905 accept. The New Compact), addressed pact VII, Art. Stat. or 1905 power jurisdiction,” to “make riparian [of] and the “exercise riparian particular rights.” grants riparian The . . . ... wharfing right All are right out. here is issue right power agreed jurisdiction were over that that and given of the Delaware River. on its side to New power jurisdiction says, however, that that Court accept, if Dela- because I that difficult to not exclusive. find wharfing Article VII allowed out that ware could forbid the nullity. permit, a ridiculous Article VII was to seeks The Court what was meant. That could not be credibility by saying Delaware’s that avoid that obstacle to forbidding power “activities is limited ordinary go beyond and usual the exercise only “riparian rights.” structures Ante, at 615. It is extraordinary operations over which character” regulate.” “overlapping Ante, retains added). accept, be- (emphasis is difficult But that also meaning prove- explains nor the neither cause the Court exception “extraordinary test. The character” nance of its means) (whatever prior absolutely law, no basis it has (and “ordinary beyond hence regards and usual” which as wharfing only inter- beyond legitimate) which out exception that navigation. is the unheard of So feres opinion. appearance in the Court’s this case is its first objections I would sustain Report. Master’s

I begin by clearing I must some underbrush. One of Dela principal arguments argument ware’s accepted by the —an implicitly accepted by Master and the Court—is that the Compact must not be construed to limit Delaware’s (albeit pre-Compact unrecognized) sovereign at the time con trol over pre “strong River, because of the sumption against interpreting defeat of a State’s title” in agreements. (Report) See Master 42-43 (quoting (1997); United Alaska, States v. 521 U. S. inter 1, 34 omitted). quotation According nal marks this Delaware, presumption gave Compact establishes that the 1905 rights, to allocate but left with power rights Delaware the to veto exercises of those under general police-power authority. its presumption

I have written of this elsewhere it “has any independent legal if beyond little force what would be principles interpretation. dictated normal of contract It (or simply presumed implied-in-fact) a rule of intent.” (1996) Corp., United States v. Winstar 518 U. S. (opinion concurring judgment). It is a manifestation rarely the commonsense intuition that a will State contract away sovereign power. enough That intuition is sound dealings private almost all state citizens, and in some dealings application state with other States. It has no here, purpose Compact however, because the whole of the 1905 precisely compromise agreement to come to a on the powers. sovereign exercise of two States’ Entered into disputed a time when Delaware and the loca- boundary, Compact tion of their demarcated the author- ity respect between the two States with of civil service process fishery, rights ripar- vessels, criminal ian on either the Delaware within the side River of a Castle, circle 12-mile the town New radius centered on Compact, 858; Delaware. v. Dela- See Stat. (1934)(New Jersey ware, 291 U. S. 377-378 v. Delaware II). way interpreted There is no can be other they yielding by to be of what claimed than as a both States sovereign only sovereign powers. The issue is what their powers yielded, the from that is best determined were language Compact, the no thumb on scales. relying presumption, on the the Master

Besides believes) (and Jersey’s claims that believed the Court implausible it Dela- that must be viewed askance because “given governing up the ware have all would receiving nothing disputed Ante, at in return.” area while plenty all, in return. First 613. But Delaware received the to fisheries on side of it ensured access of its citizens evidently Jersey something cared it river claimed New — wharfing power from the more about than the to control out And it which had never theretofore exercised. shore, (as observed) Compact termi- it obtained “the amicable Jersey’s original then-pending action in nation” of New pending twenty-seven Supreme for which had “been Court, years upwards.” plausible it How 858-859. 34 Stat. get up anything give that that rid of Delaware would surely depends upon Delaware was suit how confident prevail. appeared And the case truth, it would to tell Supreme going badly. Compact observed, be As injunction against preliminary had Court issued “restraining of the State the execution of certain statutes relating order Id., at 859. The of Delaware fisheries.” issuing injunction now had had remarked that Delaware fishing” right “interfered with and claimed to control Jerseyans accustomed” which had “heretofore been years. over 70 interference for exercise without Delaware’s (filed 1877), Orig. Jersey Delaware, No. Order New Opposition Lodging to State Brief of of Delaware State 52-54). (Tab By pp. Reopen Jersey’s of New Motion Compact providing suit, the for dismissal of New Supreme ominous rather that the Court’s assured Delaware sounding preliminary become the Court’s order would not holding, perhaps consequence gave of a rationale that Jersey jurisdiction in the river.

II Article VII of the 1905 between New Delaware reads as follows: may,

“Each State on its own side of the river, continue riparian jurisdiction every to exercise kind and na- grants, conveyances ture, and to make leases, and respec- lands and under laws of the tive States.” 34 Stat. 860. recognizes,

As the provision Court this allocates to each State over a bundle of at the time that, of Compact, riparian landowners, or “owners of land abut ting possessed on bodies of water,” under the common law “by adjacency.” reason of their 1 Farnham, H. Law of (1904) (Farnham). Rights p. Waters and Water § 62, 278 riparian rights right Those included to “fill in and to build wharves and other structures in the shallow water in [the upland] front of Id., below low-water mark.” § type 113b, 534. A wharf, the of structure at here, issue “imports place a purpose built or for constructed of load ing § unloading goods.” Id., 111, It 520,n. 1. was con necessary right sidered “a incident of the to construct [wharves piers] they project that shall to a distance from necessary the shore to reach water which shall float vessels, largest engaged as well as the smallest, that are in com upon they project.” merce the water into Id., which at up point navigabil Thus, wharves could be built to “the ity,” including J. Gould, Treatise on the Waters, Law of (2d 1891) § Riparian Rights (Gould), p. long ed. so they needlessly right as did not “interfere with the of nav igation” possessed by general public upon members of the navigable § waters, Farnham at 521. acquainted

The two States have with this com- would been comported mon law. New case law with the horn- According of Errors and to the State’s rules. Court book understand- Appeals, and the “common it was “undoubted” bounding navigable waters ing” “the owners of land that right otherwise reclaim to wharf out and had an absolute they provided that low water, even below land down navigation.” right impede paramount thereby did (1852) J.); (opinion Gough, Elmer, L. 624, 658 Bell v. 23 N. J. Right Property in Tide Angelí, Treatise on the see J. also (“[T]he (1847) Thereof and in the Soil and Shores Waters public right proprietor into a ‘wharf out’ § Jersey”); 171, at in Gould river, custom New is local (“[T]he Jersey] understanding [New carries the common provided out] [to right mark, even low-water wharf below navigation”). author to the Case there no obstruction lacking, ity but in New in Delaware seems be at oral Master II the State assured undoubtedly argument State of true “it is right upland to wharf owner had Delaware . . . that the naviga you subject only not. . . obstruct out. . . must Summary Judg App. on Motion tion.” 1 of New (hereinafter App.). ment 126a-l NJ Compact, plain each the 1905 under the terms of Thus, sovereign “jurisdiction” “authority of a had State —the legislate,” power govern International Dic- Webster's to (1898) wharfing tionary English Language the —over emphasize that this To river.” out on “its own side of the example, jurisdiction plenary not for included, it was —that power wharfing merely power prohibit the but also out the jurisdiction specified it permit the that it—Article VII every and nature.” be “of kind conferred would grant finally, jurisdictional as was not framed And though conferring unex- hitherto on either State some it was Compact provided each that power. Rather, the ercised “riparian the allocated to” exercise “continue State would envisioning clearly would wield jurisdiction,” each State rights authority riparian it had same over in the future the added). past. (emphasis in wielded 34 Stat. 860 is This significant adoption Compact because, before in Jersey regulated riparian New alone had the construction of improvements on New side of the Delaware River. repeatedly piers It had authorized construction of and beyond App. wharves that extended the low-water line. Report (listing Jersey authorizing C-4 C-5 New Acts riparian wharves); App. landowners to construct 7 NJ 1196a- regulated 1199a. Delaware, contrast, had never rights Jersey on the side, New indeed, and at the time of Compact even on its own side there was “little evidence [the State’s] develop- active involvement in shoreland ment . . ..” quite

I would think all of this conclusive of the fact that given ripar full and exclusive control over ian on the New side. Court concludes part that this alleged was not so, in however, because of implausibility “giv[ing] up governing of Delaware’s all receiving nothing while ante, ... return,” (a already addressed), mistaken contention I have and part “riparian jurisdiction” because is different from “ex jurisdiction,” clusive the term used in an 1834 be tween and York, which referred to “the jurisdiction exclusive over the wharves, docks, improvements, made and to on the be made shore...” Act of June 28, 1834, Third, ch. Art. Stat. 710. willingly riparian jurisdiction

I concede that exclusive jurisdiction” simpliciter. same as It “exclusive only riparian rights includes exclusive right which, as I have to erect described, include loading goods. ju- unloading wharves That for necessarily example, include, risdiction does not power permit on the or forbid the construction a casino power legal process wharf, or the on the wharf. even to serve not Jurisdiction to such were estab- control matters —which part rights by riparian lished common-law and as of the framing parties relied the that the on hornbook sources scope “riparian Compact may of the the well fall outside — g., Tewksbury grants. jurisdiction” Compact e. See, that the 1999) (Fla. (operation App. Beach, 763 So.2d Deerfield riparian not included within on a dock is of a restaurant conveyed may rights). powers well have been Such —which jurisdiction” by grant as that contained such of “exclusive Jersey Compact issue in at in the New York-New —are jurisdiction the core ri- this at issue is case. What is loading right building parian for the a wharf to be used of cargo. unloading that that of And given exclusively perfectly clear made jurisdic- Compact’s recognition the each State’s (em- only the 34 Stat. tion “on its own side river.” added). experience phasis in textual It not take vast does implicitly interpretation excludes each that this conclude riparian jurisdiction other State’s side State’s alterius.) (Inclusio There was river. unius est exclusio riparian jurisdiction. specify need, therefore, no exclusive position gains support fact that no from the The Court’s “ always rights private riparian subordi- owner ‘are of a may regulate rights, public their nate to state ” (quot- public.’ at Ante, in the exercise interest 284). § ing Compact purport did not 1 Farnham rights, “riparian jurisdic- convey private but rather mere anything every If that means tion of kind and nature.” “may regulate all, it that New is the State means owner] private riparian [the] [of of a exercise it public.” re- contention the interest of the Delaware’s power police prohibit even its under tains specifically allowed to New activities that are those just Compact but most of Article VII renders not under the example, nullity. III, for Article a virtual throughout, fishery gives right in, and the-States “common under 859. But 34 Stat. over the waters” of the Delaware. fishing regulate powers sovereign police State could public navigable § within its waters. See Gould at 362. Thus, just ownership under Delaware’s view, as its of trump Jersey’s riverbed would allow it to New permit wharfing ownership out, so also its of the riverbed prevent fishing. would it allow to That would be an extraor- dinary litigation result, Compact since the the 1905 de- was signed fishing rights, to resolve arose over after Delaware requiring enacted a law in 1871 fishermen obtain a Delaware license. See 3-6.

Ill following Court, analysis, Master’s see id., today’s at judgment supported by 68-84, asserts that is parties’ course Compact. of conduct after conclusion frankly I post-Compact think conduct irrelevant to this case, properly only clarify since it ambiguous can be used an agreement, ambiguity and there is no The Court, here. post-Compact moreover, overstates conduct favoring position post- Delaware’s and understates Compact favoring Jersey. post- conduct But if even is conduct no consulted, such conduct —none supports “extraordinary the Court’s character” whatever — strongly sup- test, whereas several instances of such conduct port suggested I resolution have in this dissent. upon

The Court relies four instances of Delaware’s exer- jurisdiction wharfing cise of shore, out from Jersey’s acquiescence two instances New in such an postdating exercise—all former, to the the three As extending structures from New into Delaware built permitted by ante, between 1969 Delaware, were application permit 621; ante, denied, another for a was establishes, however, 619-620. The Court never jurisdiction these instances of related Delaware’s assertion of “extraordinary only wharves which is the character,” upon that the Delaware. Court’s decree confers jurisdiction support best, At these not the assertions that it may assertion but rather Delaware’s Court’s opinion, assertion that all on the river —an wharves regulate in both present The same mismatch Court rejects. of them One asserted acquiescence. stances New for Delaware’s permission Jersey’s application described Park, the at Fort Mott State refurbish stone pier be conceivably ante, at 621. That construction could character,” thus New “extraordinary characterized as of under for permission did not need to ask Delaware ante, at instance, the described the In other theory. Court’s the assured Agency New Coastal Management “ ex New Jersey project ‘any Commerce Secretary ” added) had mean low water’ beyond (emphasis tending as Management Agency be Delaware’s Coastal by approved the This Delaware’s well as Jersey’s. again supports not the case, of this but Court’s.* ory absolutely conduct While post-Compact provides no — sub- the it for Court’s support interpretation, provides zero — New Jer- the one I have In suggested. stantial support II, v. Delaware a case this Court sey involving pre- before the of the the attorney general cisely meaning Compact, of the post-Compact-conduet argument only portion is not the *The its reliance reasoning mismatch its conclusion. So is Court’s that is a ante, 611-612, argument so upon Compact, Article at 622—an VIII of the provides response. Article VIII only weak that it a footnote deserves limits, rights, or nothing Compact in “shall affect the territorial except expressly jurisdiction of .. . as herein set either State forth.” added). Jersey’s riparian rights are ex- (emphasis But Stat. 860 forth, above— only question one I have addressed pressly set so —the overreading of accepting But the Court’s rights those consist of. is what (which to be rights requires riparian each of presumably Article VIII any why is one), utterly impossible to see Article VII it is named one Jersey’s authority wharves over “expres[s]” setting more in forth New setting forth her “extraordinary than it is that lack character” not the argument supports again, it. Once possess wharves that may it expansive theory that holding, but rather Delaware’s more Court’s is, There shoreline. any built from the regulate and all wharves holding. truth, support the Court’s nothing whatever to to tell the (obviously present posi- authorized the State’s point) Special tion on the conceded to that “Arti- Master Compact obviously merely recognition cle VII of the rights of the owners of New and a cession Jersey by juris- to the State of State of Delaware of regulate rights.” App. (emphasis diction to added). those 1 NJ 123a argument

And oral Master, before the special Delaware’s Southerland, counsel—Clarence A. a for- attorney general mer state and future Chief Justice Supreme Court in the Delaware, see Delaware Bar Twen- (H. Century Hannigan tieth 375 Winslow, A. Bookout, & P. 1994) explained expressly eds. that “the of 1905 — acknowledged Jersey, of the citizens of New by implication Jersey pos- least, to wharf out” and that New right sessed “all the control erection those wharves (em- say App. and to shall who erect them.” 1 126a-l NJ added). phasis Supreme And in Court brief that liti- gation, Delaware Court, assured the without conditions, that questioned right “Delaware never has the of of citizens New navigable right to wharf out to water nor such a can questioned clearly be protected now it is because the Compact (empha- of 1905between Id., the States.” at 139a added). rejected Supreme sis Delaware’s brief Court Jersey’s argument boundary if that, the Court found the line to be the mark the shore, low-water “the riparian destroyed interests of the will owners be either seriously prejudiced.” Id., concern, Dela- at 140a. That misguided Compact “recog- ware said, the because riparian rights nized the of owners in the wharf out.” river to Compact,” Ibid. the “The effect Article of the brief VII explained, recognized the “was that the of Delaware State to wharf of the inhabitants on the east side of the river navigable right ques- out to been water. This had never put beyond question undoubtedly tioned and was inserted to (as title) riparian rights distinguished from land own- Jersey.” ers in are Id., at 141a. These concessions understanding powerful that Delaware’s indication I the one assert. was the same as IV (2003), Maryland, opinion Virginia 540 U. S. Our very rejected effectively same as- It this case. decided police- supervening riverbed-owning State’s sertion of a river from power into the constructions over rights. riparian in- That case conceded that had been State here) (as only governing than rather two documents volved compact, provided: The a 1785 first, one.

“ respectively full shall have of each state ‘The citizens adjoining river property in the shores of Potowmack advantages there- with all emoluments lands, their carry- making privilege belonging, unto ing improvements, not to so as and other out wharves navigation Id., injure river.’” obstruct or at 62. interpreted of 1877 an award second, arbitration compact, read as follows:

the earlier “ only ‘Virginia full dominion is entitled of the Poto- shore mark on the south to low-water soil beyond right of the river to such use mac, but has necessary may full to the as be line of low-water mark impeding ownership, enjoyment without her proper interfering navigation or otherwise compact by Maryland, agreeably of sev- to the of it use eighty-five.’” 62-63. Id., at hundred and enteen authority forbid police-power rejected Maryland’s We ex- that structure Virginia’s intake of a water construction “Virginia’s territory, Maryland -held and tended into the shore’ right connected structures ‘to erect . . . enjoyment of ‘necessary the ‘full inseparable to,’ from, Id., mark.” ownership’ low-water of the soil her Maryland, at 72. we observed, was “doubtless correct that sovereignty if her over the River was well settled as of 1785, apply strong presumption against we reading would the Compact stripping regulate as her activities on the “scope River.” Mary- Id., at 67. But because the of sovereignty dispute land’s over the River was in both before Compact,” and after the presumption no such existed. Id., at 68. Today’s opinion, quoting the Master, claims that “ Virginia Maryland

the result in unique v. turned on ‘the language compact of the and arbitration award involved 118). (quoting Report that case.’” Ante, 64, n. But say virtually the every case did not that. of And course agreement “unique written language,” or award has so if we only legal principles pertaining could extend other cases language interpretive jurisprudence to identical our would Virginia Maryland be limited indeed. documents in v. precisely Compact said in other words what the here said: (there, Virginia, of Jersey) one the States here, New given riparian rights, including right was to construct improvements. holding wharves and And the case rights power was police that those could be free of exercised by owning or other interference State riverbed. Virginia Maryland The Court contends that in the arbi- v. compact, tration award, rather than the “was be- definitive,” “ ” recognized right Virginia ‘qua sovereign,’ cause it “ right ‘subject Maryland’s regula- nowhere made 72). tory authority.’” (quoting Ante, S., at 618 540 U. Compact spoke But Article VII of the here at issue likewise (what sovereign” “qua of else does mean?) similarly riparian jurisdiction” [of] the “exercise regulatory rights subject did not make those to Delaware’s authority. Virginia Maryland that the We stressed in (and interpretation compact salient hence factor in the interpretation compact) in the arbitration award’s here) (like way that it into was entered boundary any dispute. continuing infer- “If a settlement of compact’s] [the the silence on from ence at all is to be drawn authority,” each subject regulatory “it is that said, we regulate of her own citizens.” the activities State left effectively Virginia Maryland this decided Id., at 67. case.

V length upon Finally, greater the Court’s I remark must at Jersey’s wharfing-out rights— upon peculiar limitation “extraordinary But character.” that it excludes wharves of precisely the is limitation, that the conclusion Court’s my riparian rights authority over same as own: “Given the Jersey, Compact preserves Delaware for New that right may impede ordinary usual and exercises Jersey’s shore.” out from owners wharf inexplicably however, Ante, concludes, The Court (LNG) gas unloading liquefied wharf natural ordinary beyond litigation “goes stake in this well “extraordinary Why? possesses it usual.” Ibid. Because character.” (and judg- knowledge apparently Court’s,

To our by any phrase ing authority) the has never its failure to cite involving any case limitations been mentioned before in wharfing a in the world does it Would out. What mean? qualify? Today’s opinion pink zig-zagged wharf wharf or say gives phrase “Del- than to itself no content other unloading proposed termi- LNG aware’s classification product ‘[hjeavy industry transfer use’ and a ‘bulk nal as challenged facilit[y]’ hardly be, could been, . has not . . bizarre. Ante, This rationale is at 622-623. as inaccurate.” any designation why Delaware reason There no Department Environmental Con- of Natural Resources controlling mean- on, to, relevant let alone trol would be why Compact; ing no reason state- turn on the should the 1905 under “rationally categorize[s]” a question law whether wharf under its own statutes, ante, 623, at n. 21. Wharves commonly “heavy industry were for used use” when the 1905 adopted, primary and their use commercial was cargoes. roughly contemporaneous transfer bulk One design building book on the in wharves America in- appropriate pavement cluded information material to en- able proper laying use on wharves, trucks method down railroad tracks, and the construction of hatch cranes unloading cargo. for See C. Greene, Wharves and Piers: Design, Equipment Their Construction, 191-194, 206- (1917). gives why The Court no reason the terminal’s “[h]eavy industry product character as a use” and a “bulk ” facility] slightest. transfer matters in the Indeed, the Court “extraordinary does not take its state-law for reason seriously, conceding reg- character” that Delaware not could product ulate an identical wharf for “bulk transfer” of sprouts,” “tofu and ante, bean at 623, n. 21.

Apart Department’s from “[h]eavy industry the Delaware product use” designations, and “bulk transfer” the Court support cites, as its conclusion that this wharf is “ex- traordinary background character,” its own factual section describing (citing ante, the wharf. See at ante, 622-623 at 606-607). any, It is not clear if which, of the facts discussed there the Court claims to be and I relevant, am forced to speculate they might on what be. long, it be

Could the size of the wharf, 2,000 which is feet ante, see at 606, some feet 1,455 extends into Delaware territory, see for BP Brief America et as Inc. al. Amici Curiae single length 1-2? But the a Court cites not for this source upon wharfing intimate, limitation in out. We did not hold- ing Virginia Maryland Virginia in could authorize pipe extending construction of a water intake 725 feet from Maryland, S., shoreline into the re- see U. length pipe. sult turned on the I discussed, of the As have the common wharves: law did establish size limitation for the wharf could not be extended so far as to interfere need- navigable lessly “right navigation” public’s in wa- § to ac- constructed 1 Farnham at 521. Wharves ters. “project from the shore could distance cess the water largest necessary vessels, shall float to reach water which added). (emphasis Del- Id., at 522 as well as the smallest.” inter- in this ease will has claimed that the wharf aware approximately navigation one river, which fere with Inc. et al. BP America mile this see Brief for location, wide at reveals that Jer- Amici record as Curiae And sey, anticipated the river on its side of that wharves least, by establishing as the wharf this case could extend as far pierhead “below low that extended lines 1877 and 1916 varying 3,550feet.” from 378 to water mark at distances (affidavit of App. Rich- id., 376a 135a; 369a, NJ see also 3 at (Pierhead Castagna). permissible lines mark the ard G. any supra, Greene, kind.” “outshore limit of structures of 27.) at “extraordinary rendering

Could the fact this wharf of dredg require the would character” be that construction ing yards Delaware’s terri of million cubic of soil within 1.24 perhaps, by tory? suggested, at Ante, 606-607. This says portion that acted within of the decree which “Delaware prohibit scope governing unreasonable of its Ante, at uses of the soil within the twelve-mile circle.” . .. Although again. 624; ante, at 8. But no see also n. required dredge contains no evidence of the volumes record river at the time of Com to construct the wharves on the navigational pact’s adoption, im it show that an 1896 does yards required dredging provement million cubic of 35 Cape May dredging at River, from and a 1907 the Delaware yards. 7 Jersey, million cubic 19.7 Harbor, New removed (affidavit Weggel). At App. of J. Richard 1224a, 1234a NJ e yards very dredging cubic million of 1.24 least, th by individuals familiar to or ascertainable “would have been time the at the structures uses or interested signed I not at do Id., 1227a. or ratified.” response know what to make the Court’s that the in- dredging stances of “public I have cited involved works.” upon Ante, at 607, n. 8. Is limitation holding only private Court’s “extraordinary wharves of — regulated by character” can be But in fact Delaware? dredging nothing seems to have to do with the issue, since (onceagain) acknowledges the Court that the same wharf sprouts tofu and bean would be OK.

Could the determinative fact be that the wharf would “[sjupertankers capacities up service 200,000 cubic (more percent larger any ship meters than 40 than car- then rying gas),” ships natural ante, 606; that these “would pass densely populated require areas” and establishment of moving safety [that] “a zone would restrict other vessels 3,000feet ahead and behind, 1,500 feet on sides,” ante, all suggested, perhaps, portion n. 7? This is says the decree scope which that “Delaware acted within the governing authority prohibit of its unreasonable uses the river . .. within the Ante, twelve-mile circle.” at 624. surely power But not. Whatever Delaware has to restrict (a question traffic on the waters the United States not presented by though case, this one that seems to inhibit positing “authority prohibit decree’s blithe of state ibid.), bearing unreasonable uses of the river,” it has no whether can build the without Dela- wharf ware’s interference.

Could the determinative fact be that be the wharf will transport liquefied gas, dangerous? used to natural which is again. support, No The Court cites no I am aware of and proposition none, for the a that the common law forbade goods. wharf owner to At time load or unload hazardous Compact’s adoption, congressional reported of the sources transport, among that the other Delaware River was used to gunpowder, explosives. pitch, items, coal sulfur, tar and and Engineers, Annual the Chief United States Army, Cong., Sess., 1031-1033 H. R. Doc. 59th 2d No. H) (1906) (App. (tabulating commerce on the Delaware River 1905). published some time after in and Books item 1904 handling Compact proper adoption of the discuss liquids “dangerous goods,” including as ben- such seaborne Dangerous Aeby, turpentine. petroleum, and See J. zene, (2d 1922); Taylor, Wharf Man- MacElwee & T. Goods ed. R. (1921). agement: Storage Stevedoring There and parties that the is not a shred of evidence Delaware would not be understood that New loading grant riparian and un- for the authorized amorphous goods loading and unex- that are—under some plained dangerous. criteria — bearing any upon say has I that none of these factors anything wharfing at here is at out issue whether, law, right. ordinary exercise of more than the usual and suggest, that these factors however, amI not so rash as to nothing all, After our had with the Court’s decision. to do environmentally that if New sensitive Court concedes equivalent approved accommo- dimensions, to had a wharf of equivalent carrying tofu bean size, date tankers of sprouts, ante, interfered. See Delaware could have 623, n. 21.

According study, on the LNG construction activities to one facility 1,300 than new have created more in case would this product, gross jobs, state to New $ 277 added million revenues. produced in local tax million state and $13 Impacts Proposed Crown of BP’s et al., J. Seneca Economic 2007), http://www. (Apr. Landing online Terminal LNG policy.rutgers.edu/news/reports/other/BPCrownLanding.pdf (as of Court’s and available Clerk 28, 2008, visited Mar. file). gener facility projected Operation case jobs, permanent million state than $88 ate and more 30-year period. Its de Ibid. tax and local revenues percent current capacity represent livery would region. In gas Id., at 66. consumption in the of natural holding may project, that Delaware veto owes Court energy-starved to an mention Nation— —not something unsupported more than its casual and statements possesses “extraordinary that the wharf character” and “goes beyond ordinary well or usual.”

Today’s decision does not even have the of excuse achiev- ing design, a desirable result. If one to ante, were ex socially optimal power permit allocation of the to and forbid wharfing surely power lodged out, that would be with the sovereign gain that stands most from the benefits of a wharf, most to lose from its environmental and other Unquestionably, jurisdic- sovereign costs. is that tion over the land from which the wharf is extended. Dela- ware they and New doubtless realized this when agreed jurisdiction in 1905 that each of them would have riparian rights genius on its own side of the river. The today’s irrationality decision is that it creates where sweet prevailed straining mightily, against reason once odds, all — power permit “heavy industry ensure that the or forbid use” wharves in New Delaware, shall rest with which facilitating has no delivery goods interest whatever in Jersey, relatively to New which has little lose from the dangerous goods frequency nature of those or the and man- delivery, may ner of their and which well an have interest forcing employment- the inefficient location of and tax- producing wharves on its It own shore. makes no sense. “[t]he

Under its decree, Court retains enter- tain proceedings, such further orders, enter such and issue may necessary such writs as it from time to time deem give proper desirable to force and effect to this Decree or to parties.” Ante, effectuate This suppose, anticipate could I mean, can we whole cate- gory original clarify, actions in this wharf Court will “extraordinary wharf, what a wharf character.” (Who thought utterly would have that such indefinable and unpredictable complexity lay hidden within words of the builders of however, prospective likely, More Compact?) shore— from use” industry wharves “heavy else- simply go Delaware and size—will apply whatever where if rejected. have been would litigation in this issue

The wharf the time use usual riparian as an ordinary viewed Compact. entered into States two I respect- construction. accordingly may prohibit contrary. to the judgment from the Court’s dissent fully

Case Details

Case Name: New Jersey v. Delaware

Court Name: Supreme Court of the United States

Date Published: Mar 31, 2008

Citation: 552 U.S. 597

Docket Number: 134, Orig.

Court Abbreviation: SCOTUS